Showdown at the border(wall): the environmental perils of opposing all federal permitting reform

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This week, a federal judge upheld the Department of Homeland Security’s decision to exempt construction of the border wall from many environmental laws, including the National Environmental Policy Act and the Endangered Species Act. Ordinarily, those statutes require expensive and time-consuming environmental reviews for projects, including many small projects, and can tie controversial projects up in litigation for years or decades.

Congress has long sought to reform that process to reduce delays, while preserving needed environmental reviews. Last year, I testified in support of such reform, arguing that excessive permitting delays can discourage necessary infrastructure maintenance and upgrades, risking greater environmental harms than could result from the project.

The border wall decision highlights the downside of past environmental opposition to any reform of the permitting process. That strategy might work with respect to run-of-the-mill projects that don’t have significant political pressure behind them. For instance, if a bucolic town needs to replace a decrepit bridge or a handful of farmers need to upgrade an irrigation pump, they likely have no choice but to deal with the delayed permitting process. But higher profile projects, like the border wall and the President’s proposed infrastructure plan, have enough political force behind them to get legislative exemptions from this process.

That’s precisely how the border wall is avoiding environmental review. By statute, Congress has authorized Homeland Security to waive “all legal requirements” he or she “determines necessary to ensure expeditious construction of the barriers and roads.” With such broad language, the court had little choice but to approve the government’s waiver decision:

The Court is aware that the subject of these lawsuits, border barriers, is currently the subject of heated political debate in and between the United States and the Republic of Mexico as to the need, efficacy and the source of funding for such barriers. In its review of this case, the Court cannot and does not consider whether underlying decision to construct the border barriers are politically wise or prudent. As fellow Indiana native Chief Justice Roberts observed in addressing a case surrounded by political disagreement: “Court[s] are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”

This example raises an interesting question: is opposition to modest reform to the permitting process ultimately self-defeating, by making it more likely that the largest projects are made wholly exempt from the process? From an environmental perspective, these projects have the most complex, and often most significant, environmental impacts. They’re precisely the sort of project for which environmental reviews could be most helpful. Yet they’re also the projects most likely to have the political support to obtain an exemption.

In the long run, environmentalists might be better off supporting modest across-the-board reform, to reduce the political pressure for wholesale exemptions.